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02/25/2006 10:48:39 AM · #1
//www.asmp.org/news/spec2006/orphan_faxcall.php

Please read the above link - to summarize, the US congress is looking at a bill that will modify the copyright law - any image/work (photo, etc) that exists, old or new, may become an orphan- and the rights free use of it without compensation made legal!

Under the proposed legislation, a person or other entity who wants to use a copyrighted work is required to make only a "good faith, reasonably diligent search" to locate the copyright owner. If, after making such a search, the user is unable to locate the copyright owner, he/she/it gets an almost free license to use the work. If the copyright owner never comes forward, the user gets to use the work for free. Even if the copyright owner discovers the use and demands payment, the MOST the copyright owner can get is "reasonable compensation," i.e. a reasonable license fee for the use actually made. There is NO possibility of statutory damages or attorneys' fees, even if the work was registered before the use was made without your permission.

So if you are published and don't get a credit line that published work may very well fall into this category - who's to say what 'diligent good faith' effort is? You image is 'stolen' from a website and ends up someplace else - no way to identify you as the owner, so it becomes a free image.

Contact your congressman and urge them to vote against this.
02/25/2006 11:32:04 AM · #2
Originally posted by Prof_Fate:

//www.asmp.org/news/spec2006/orphan_faxcall.php

Please read the above link - to summarize, the US congress is looking at a bill that will modify the copyright law - any image/work (photo, etc) that exists, old or new, may become an orphan- and the rights free use of it without compensation made legal!

Under the proposed legislation, a person or other entity who wants to use a copyrighted work is required to make only a "good faith, reasonably diligent search" to locate the copyright owner. If, after making such a search, the user is unable to locate the copyright owner, he/she/it gets an almost free license to use the work. If the copyright owner never comes forward, the user gets to use the work for free. Even if the copyright owner discovers the use and demands payment, the MOST the copyright owner can get is "reasonable compensation," i.e. a reasonable license fee for the use actually made. There is NO possibility of statutory damages or attorneys' fees, even if the work was registered before the use was made without your permission.

So if you are published and don't get a credit line that published work may very well fall into this category - who's to say what 'diligent good faith' effort is? You image is 'stolen' from a website and ends up someplace else - no way to identify you as the owner, so it becomes a free image.

Contact your congressman and urge them to vote against this.


That is such B.S.

Someone could just take any image they wanted and claim "Well, I tried to find who made it, but I couldn't, so I just went ahead." Even if they made no such effort. This will basically turn the whole thing into a free-for-all.
02/25/2006 11:35:03 AM · #3
That is crap!
02/25/2006 11:47:41 AM · #4
Wow, that's serious. Every member here who's an American should be contacting their representative to protest this ASAP. I certainly am going to.

Robt.
02/25/2006 11:54:59 AM · #5
If you don't have the time to write/fax or whatever, at least go here, find your state, and click the contact form:

//www.senate.gov/general/contact_information/senators_cfm.cfm

I've used that method before to contact my senator, and he actually got back to me.
02/25/2006 12:13:08 PM · #6
This proposed legislation does not surprise me. When the U.S. Supreme Court ruled that government agencies may sieze your property and sell it to someone else, that opened the door for all kinds of legalized theft. This particular proposed legislation is especially onerous for photographers whose work may be published in a country other than their own. It would be very difficult to identify or track down the copyright holder of such published works.
Is theft now so much a part of corporate culture that it is being protected by law? "I need a whizzbang photo layout to promote my new widgit. The law says I can just take what I want and never worry about consequences! Ain't life sweet?"
02/25/2006 12:29:42 PM · #7

After reading a lot of the original text of the study, it doesn't sound that unreasonable to me. There are some good points and it does seem like the authors are trying to put in safe guards to protect the indiscrimanate abuse that something like this could cause. As it's written it sounds like the proof of the dilegent search for the author will be on the person that uses the work of someone else. If they can't prove they deligently did a search, then they get treated as an infringer. If they show they did, then there are several proposals of how to handle that.

The one thing that does bother me though is that it indicates that they took comments from less than 900 people. And even though 40% indicated that they did not have a problem with finding the author of something they wanted to use, the other 50% wanted some kind of easing of the orphan image use law.

So rather than sending scolding letters to your representitive (and the boilerplate version at that) it sounds like a simple letter expressing concern about this and encouraging that more discussion be allowed over a much larger group of people.

The trouble with boiler plate letters like the one provided is that it slants everything towards that person's opinion. And I believe that there is less impact in someone getting 10,000 boiler plate e-mail messages than if they get 5,000 individual e-mail messages where people express the same thing in their own words. It's easy to get people riled up and to have them send off something they only have to fill in a few blanks... many don't take the time to research, they just react. But for someone to take the time to write something up in their own words, that shows they gave it some thought and that they are really concerned about the issue.

The problem with the internet is that we don't always hear both sides of a story... just the side of the person that screams the loudest.

Mike
02/25/2006 12:39:21 PM · #8
At first blush the proposal does sound reasonable. The problem is that it can and will be abused. As someone else noted, the copyright holder has limited recourse to collect payment: if the abuser refuses to pay the few hundred dollars 'fair compensation' then the copyright holder can mount a $100,000 law suit to collect the $200. Note there is no enforcement provision in the proposed legislation, torts must be resolved in civil court.
02/25/2006 02:35:08 PM · #9
bump
02/25/2006 04:14:52 PM · #10
Originally posted by deapee:

bump


yeah
02/26/2006 02:11:32 AM · #11
The system is abused as it is. And it also has it's limitations, as has been pointed out. I can well attest to not being able to sue someone because I couldn't afford it. I've been infringed on for commercial use twice that I know of. The first time, the woman that used one of my images for commercial gain got away with it because I didn't have my image registered. She ignored my attemps to get her to settle and was willing to see if I would taker her to court first. Neither lawyer I talked to wanted to take the case unless I paid them up front a good retainer. As much as it ticked me off (and still does) I used that as a wake up call and got my images registered. A month ago, I caught another woman that used one of my images for commercial profit. Except this time I had them registered. When I explained this to her and encouraged her to talk to a IP lawyer as to how much liability she had put her self in, she rolled over and paid my price with barely a argument.

I really don't think there will ever be a way to satisfy everyone with the amendments. I'm sure it's going to benifit one side more than others. Laws always do. But though there are going to be those that will abuse it, I don't see this being created for a group of people to all of a sudden be able to get their hands on our pictures and not have to pay for their use. Those that try to get something for nothing are still going to do that. Those that are honest will try to find the authors, except now they will be able to use the images if they can't find them. I don't understand what images are out there that caused an amendment like this to be needed, but I guess there was something that caused people to want to be able to use ophaned images.

But like most things, time will tell what is finally decided. And the final amendment might be totally different from what they have written up now. In the meantime I'll continue to register my images so they don't become orphand. :D

Mike
02/26/2006 02:36:17 AM · #12
The question is...what is an image worth?. A lot of people give away images to micro sites for .20c and lose all control of them even the people who brought them would lose control over them.

I think you will find it hard to stop this from happening, the internet has opened up a whole new ball game with image theft.
02/26/2006 02:52:33 AM · #13
That means the presidential seal is Mine/Ours, I can't find the owner?
02/26/2006 03:13:45 AM · #14
Originally posted by MikeJ:

The system is abused as it is. And it also has it's limitations, as has been pointed out. I can well attest to not being able to sue someone because I couldn't afford it. I've been infringed on for commercial use twice that I know of. The first time, the woman that used one of my images for commercial gain got away with it because I didn't have my image registered. She ignored my attemps to get her to settle and was willing to see if I would taker her to court first. Neither lawyer I talked to wanted to take the case unless I paid them up front a good retainer. As much as it ticked me off (and still does) I used that as a wake up call and got my images registered. A month ago, I caught another woman that used one of my images for commercial profit. Except this time I had them registered. When I explained this to her and encouraged her to talk to a IP lawyer as to how much liability she had put her self in, she rolled over and paid my price with barely a argument.

I really don't think there will ever be a way to satisfy everyone with the amendments. I'm sure it's going to benifit one side more than others. Laws always do. But though there are going to be those that will abuse it, I don't see this being created for a group of people to all of a sudden be able to get their hands on our pictures and not have to pay for their use. Those that try to get something for nothing are still going to do that. Those that are honest will try to find the authors, except now they will be able to use the images if they can't find them. I don't understand what images are out there that caused an amendment like this to be needed, but I guess there was something that caused people to want to be able to use ophaned images.

But like most things, time will tell what is finally decided. And the final amendment might be totally different from what they have written up now. In the meantime I'll continue to register my images so they don't become orphand. :D

Mike


With this law it doesn't matter if they are registered or not. If they are deemed orphaned, then you will have a hard time collecting damages. SO if they say they tried to find out who owned the photo, then they don't even have to pay you a fee at all.

But I guess that sounds reasonable to you? ;o)
02/26/2006 06:38:14 AM · #15
Not to keep bangin' the gong for Professional Photographers of America (PPA) but they have a presence in Washington DC and I get almost weekly updates regarding how they are combating trying to help revise and define this legislation through meetings with Representatives and Senators. If you want to put any money towards fighting legislation and at the same time help yourself to some great communication with other photogs and resources that have been built over decades then I'd suggest you might consider joining this group.

From the most recent PPA e-mail regarding this (I'm assuming this is freely distributable since its link is in the Public area of the website):
Originally posted by PPA_Email:


For PPA's full analysis of the bill: //www.ppa.com/files/public/PPACommentsCO-OWFinalReport.pdf

However, we are not asking you to contact Congress at least not yet.

Why? The reason is simple; the Copyright Office proposal is just that a proposal. Legislation on orphan works will be introduced, however, we have been working with Congressional staff to make sure that any bill that actually gets introduced addresses our concerns. We have also been meeting personally with other copyright owner groups, like the Motion Picture and Recording Industry Associations, to develop a comprehensive, coordinated lobbying strategy.

Because of these efforts, and our consistent presence in Washington, it appears that on March 8, PPA will probably be testifying before the House Subcommittee on Intellectual Property about this issue. By having this platform for addressing the subcommittee, PPA will be able to bring your concerns directly to the decision-makers who will determine the content of any orphan works legislation.


Kev

EDIT: Changed wording for greater accuracy of PPA efforts

Message edited by author 2006-02-26 06:41:33.
02/26/2006 09:44:09 AM · #16
Originally posted by MikeJ:

... A month ago, I caught another woman that used one of my images for commercial profit. Except this time I had them registered. When I explained this to her and encouraged her to talk to a IP lawyer as to how much liability she had put her self in, she rolled over and paid my price with barely a argument...

.... In the meantime I'll continue to register my images so they don't become orphand. :D...

Mike


With this new system, it doesn't matter if the images are registered or not. All the infringing party has to do is show that they made some effort to search for the owner. Keep in mind that their incentive to actually FIND the owner is pretty low since that would mean they have to pay tto use the images, so I doubt that full effort will be put into any searches.

In your case, had this new law been in effect, the additional liability that provided the incentive for the woman to pay would not have been there, you would have had to sue to get your fee. You would be forced to spend thousands of $'s to recover your fee. Your images would have been deemed orphaned and therefore, basically worthless to you.
02/26/2006 11:52:00 AM · #17
Brent, you can look at any law we have in the same light if you want. Many have loopholes and weaknesses. But I don't see it being a doom and gloom situation. And I just don't see it opening up a wholesale theft of anyone's prints either. I'm sure theft will happen, just like it does now, and they will say they "tried" to find the owner and some will even get away with it. But it just isn't going to happen as much, as often or to as many as some people would have you believe. You know why? Because first, an image has to be someplace where it can be ripped off. It's hard to rip off a snap shot that's in a shoebox in the closet. Second, of those on the internet or in other public places, most are not worth stealing or just won't the attention of the large corporations that need images. Third, if someone has an image that people are going to be falling over themselves to steal and try to use without paying for it, then more than likely it's going to be very hard to claim "I couldn't find the owner". Forth, those people that use other's images for small time commercial use, are still going to do this, no matter what the law. And chances are, you will never know it. And since most photographers do not even register their images, you wouldn't be able to do anything even if you wanted to... unless you had a lot of extra money or had a IP lawyer in the family.

With the internet and how easy it is to share images and other works to others, the whole copyright issue is going to need to be addressed. But it's going to take years to do that. Then you have to get the other countries on board. The issue of people in other countries infringing on us is a bigger issue than the orphan amendment will ever be. Many countries have no concept nor concern about US Copyright. And unless you are one of the big boys with lots of money, most of us, registered or not, would never be able to do anything about it. I've already seen images of mine and others that have shown up on web sites in other countries. Some gave credit and some didn't. There was one that I couldn't even understand what they said about it, but there was quit a discussion going on in what ever language it was in.

I'm not saying that people shouldn't voice their opinions to their represenitives if they feel they need to. But I would hope that those that do would put some thought into it when they did and not just knee jerk react based on what was posted on the internet with a boilerplate letter.

Mike
02/26/2006 12:39:10 PM · #18
I sat through a copyright lawsuit over a sweater design in London a few years back. The defense of the accused was "I didn't know whose it was". The judge then stated "But you knew it wasn't yours". With that the plaintiff had to prove it was thiers and that was it, they won. (I was on the side of the plaintiff). The judges standard in this case seems good enough for all copyright lawsuits, it's your or it isn't. If it isn't don't use it.
02/26/2006 01:00:55 PM · #19
Mike,

Why then do you think that every major photography organization is against it?

I belong to ASMP and the only issues we get notified about are the major ones. This one is huge.

It's right up there with the copyright changes adding the "work for hire" language that was done in the past.

I always find it humurous to hear a photographer voting to take away more of his rights. :D
02/26/2006 02:14:30 PM · #20
I would argue that photography/photographs are the most frequently stolen/pirated art form, not music and movies. When I worked for Staples Copy Center people would bring in copyrighted images all the time, and then they'd get hostile when we said we couldn't copy it without a release. I go to websites all the time where they use celebrity pictures from some place like Getty Images. Then, another person will use PS to remove the visible watermark, and pass it around. IE they steal the photographer's work. But, nobody cares about us. This legislation would just make it easier for people to steal our work.
02/26/2006 03:04:20 PM · #21
It's very odd that the US is considering this as they are more than likely bound by International Copyright Law via the following associations..

International Copyright Law
- The Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) - (Annex 1C to the Agreeement establishing the World Trade Organisation 1994)

- The Berne Convention for the Protection of Literary and Artistic Works 1928 (Rome Act revision)

- The Universal Copyright Convention 1952

- The Geneva Convention for Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms 1971

To go outside of these international protocols, the US would have to cease to be a party to all of them and to all of their protective provisions. That seems a little weird and I wonder how far they've gone down that path to seriously risk-assess the implications.

Brett
02/26/2006 05:49:41 PM · #22
Brent, I don't know that every major photographic organization is against it. If they are, it's funny that this is the first time I've seen any mention of it in any of the photo forums I'm on... and I'm on a number of them. And how long has this study been going on again? ;)

If every major photographic organization was against it, why didn't they put out the word when they were taking comments about it? I'm sure if the members were against it more than 800 some people would have made comments. Ok, maybe the organizations are against it but the members aren't. Or it's just a few vocal people that don't like it and now they are trying to get everyone else riled up about it. In any event, if every major photographic organization is against this, then they sure didn't do a very good job of getting the word out to their members and non-members alike... or maybe they considered it a secret only to be told to t heir paying members?

And just because I don't happen to agree that this is the problem a few people seem to think it is, doesn't mean I want to give up any rights. If anything, the more laws and regulations there are, the less rights we all have. Why not make it easier and cheaper to enforce the laws that are on the books? The more layers of laws you add the more loop holes are created. There are plenty of laws on the books now... it's just most of us can't afford to take advantage of them.

If you see it as a problem, then by all means, write your letters. I have no problem with that as it's your right. But I also have the right to have a different opinion about it and to not write any letters. I don't think there is going to be a lot of changes in how things are done if something is put in place, but then I can't it won't either. Time will tell, as time never keeps any secrets.

Kiwi, actually, it's not the US (as in the government) that is considering it, but a group of people in the US that are trying to make the changes to existing laws. I'm not sure what group exactly, but they have enough backing to get it into the system. I suspose someone can dig back to when it was first introduced and find out who was sponsoring the changes, which would give an idea of what their agenda was. That's the big problem with laws like this, you really don't know why it's being sought after in the first place. Sometimes it's for good reasons and sometimes it's to benifit one group or another. Sometimes it starts out good and gets used for the wrong reasons. It's really hard to say and why at face value I'm not really opposed to it although I'm not for it either. Maybe if there was more real information other than speculation of what could happen, it would make more sense to fight it. Or it might make more sense to support it. For now, I'll just wait and see.

Mike
02/26/2006 06:39:05 PM · #23
I know ASMP and PPA for sure. That probaly covers at least 80% of the pros.

The problem is, if it's passed, it won't be until the abuse starts for you to realize that it was a bad idea. Then it will be too late. ;o)

Here's a post on another board. //www.fredmiranda.com/forum/topic/359240

Message edited by author 2006-02-26 18:41:55.
02/26/2006 07:09:06 PM · #24
Originally posted by MikeJ:


And just because I don't happen to agree that this is the problem a few people seem to think it is, doesn't mean I want to give up any rights. If anything, the more laws and regulations there are, the less rights we all have. Why not make it easier and cheaper to enforce the laws that are on the books?


You'll essentially be giving up all rights to any image you have published or posted on the web. If you want to give away your work, you can do that now without screwing everyone else.

Instead of making it cheaper and easier to enforce the laws, this proposal would remove any real disincentive to infringement.
02/26/2006 07:59:25 PM · #25
How do I register my name?
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